IJ Clients Ask: Got Free Speech?

April 2004

IJ Clients Ask: Got Free Speech?

By Chip Mellor

Across the nation, government is telling our clients to shut up and speak.

Our clients are enterprising individuals trying to earn an honest living. Like all businessmen and women they must advertise their wares and create a distinct identity in the market. But because the courts have created a false dichotomy between political and commercial speech, bureaucrats think that the speech of people like our clients can be suppressed, conditioned, or coerced by government edict.

Political speech receives, as it should, very high First Amendment protection from government control. (The Supreme Court’s recent decision upholding campaign finance reform, however, undermines even this once-sacrosanct proposition. See IJ Arizona Chapter Executive Director Frank Conti’s article on page 10 to learn about IJ’s case challenging supposed campaign finance reform in Arizona.) Economic or commercial speech, on the other hand, is treated as second-class speech subject to far greater control, even when it is entirely truthful and non-fraudulent.

IJ believes in the unfettered flow of political and economic information. Three current IJ cases we are litigating across the nation seek to vindicate this belief.

Just last month, we scored a major victory in the 3rd U.S. Circuit Court of Appeals in a case that pits the First Amendment against agricultural regulation and promises to have far-reaching consequences for free speech. Although just about everyone has seen the “Got Milk?” ads on television and in print, most people do not know that under the federal Dairy Promotion Program, dairy farmers are forced to pay for them. IJ’s clients, the Cochrans, for example, must pay more than $4,000 a year from their thin operating budget for advertisements that obscure the distinctions between the Cochrans’ traditional farming and large-scale producers. This is compelled by government in order to create more demand for surplus milk produced as a result of government subsidies. This case will have major implications for the many similar programs promoting a wide variety of agricultural products such as “beef, it’s what’s for dinner” and “pork, the other white meat” ad campaigns, to name two.

“The Court made clear that just because an industry is regulated doesn’t mean that its members lose their First Amendment rights,” said Steve Simpson, IJ’s lead attorney on the case.

Meanwhile, our Washington Chapter secured a first round victory when it persuaded a federal court to enjoin as likely unconstitutional the City of Redmond’s ban on portable signs containing certain commercial messages, such as those about bagels, pending a trial on the merits. For six months, Blazing Bagels shop owner Dennis Ballen had an employee stand on a street corner in Redmond wearing a sign that read “Fresh Bagels – Now Open.” Ballen’s employee promoted the store, which is tucked away well off a main street and therefore relies heavily on signage to attract customers. In June of 2003, however, a Code Compliance Officer from the City of Redmond hand-delivered a letter telling Ballen that such advertising for Blazing Bagels “needs to cease and desist immediately.” The letter told Ballen that in Redmond, portable signs—including those held or worn by individuals, containing certain kinds of commercial information—are prohibited.

“Cities nationwide constantly try to stop people from starting or promoting entrepreneurial businesses,” said Bill Maurer, executive director of the Institute for Justice Washington Chapter, which is litigating for free on Ballen’s behalf. “The injunction the court issued in this case should remind the City that its regulations must follow the Constitution.”

Finally, our Arizona Chapter, ably represented by pro bono local attorney Court Rich, appeared in court to vindicate the free speech rights of Edward Salib, the owner of a Winchell’s Donut franchise, by asking an Arizona court to declare the City of Mesa’s sign ordinance unconstitutional. The ordinance prevents Salib from advertising donuts and coffee in his shop windows. In August 2002, a Mesa “code enforcement officer” forced Salib to remove every one of the signs advertising monthly specials, such as frozen mocha cappuccinos, from his shop’s windows because the signs covered more than 30 percent of any windowsill or pane area.

At first, Mesa defended its action by saying that police officers needed an unobstructed view into local businesses. But after it was pointed out that businesses in Mesa are not even required to have windows, and that windows may be covered with blinds and shades or tinted to entirely block views, Mesa quickly shifted gears to say that the restriction is to protect aesthetics. The Institute for Justice says that offending a bureaucrat’s sense of aesthetics isn’t a good enough justification for violating a person’s free speech rights.

The First Amendment must remain robust in its protection of speech if we are to survive as a free nation. You can count on IJ to play a unique and important role in securing a rule of law that makes it possible for individuals to make informed choices in the political and economic marketplaces.

Chip Mellor is the Institute’s president and general counsel.